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EXHIBIT 3.10.DDD
THIRD-AMENDED AND RESTATED NOTE
Dated as of: December 15, 1996
Philadelphia, PA
For value received and intending to be legally bound, EQK REALTY
INVESTORS I ("Maker"), a Massachusetts business trust whose address is 5775
Peachtree-Dunwoody Road, Suite 200-D, Atlanta, Georgia 30342, promises to pay to
the order of PNC BANK, NATIONAL ASSOCIATION (successor by merger to Provident
National Bank), a national banking association organized and existing under the
laws of the United States of America (hereinafter called "Payee"), at Real
Estate Finance Division, P.O. Box 7648, Broad and Chestnut Streets,
Philadelphia, Pennsylvania 19101 or such other place as Payee may designate in
writing, the principal sum of ONE MILLION FIVE HUNDRED EIGHTY-FIVE THOUSAND TEN
DOLLARS ($1,585,010.00) lawful money of the United States of America, or so
much thereof as shall have been advanced, together with interest on the
outstanding principal balance thereof at a rate or rates per annum (the
"Interest Rate") as provided in the Second Amended and Restated Loan Agreement
dated December 16, 1992 between Maker and Payee, as amended by a First
Amendment to Second Amended and Restated Loan Agreement dated as of December
15, 1995 and a Second Amendment to Second Amended and Restated Loan Agreement
(the "Second Amendment") dated the date hereof (collectively, the "Loan
Agreement"). All interest shall be calculated in accordance with the Loan
Agreement.
The Note shall be payable as follows:
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(a) Interest from and including December 1, 1996
through December 15, 1996 on the outstanding principal balance of the Prior
Note at the interest rate set forth in the Prior Note shall be paid by Maker to
Payee on January 1, 1997.
(b) Interest from and including December 16, 1996
(the "Effective Date") through December 31, 1996 on the outstanding principal
balance hereof shall be paid by Maker to Payee at the Interest Rate on January
1, 1997.
(c) Interest on the outstanding principal balance
shall be paid by Maker to Payee at the Interest Rate (the "Provident Monthly
Interest Payment") commencing on the first day of February, 1997 and on the
first day of each month thereafter until June 15, 1998 (the "Maturity Date").
On the Maturity Date, the entire amount of principal outstanding
shall be due and payable in full together with all unpaid accrued interest.
If Maker pays all or any portion of the outstanding principal
balance prior to the Maturity Date (whether a voluntary payment or acceleration
or otherwise), Maker shall pay to Payee the amounts as set forth in Section 3
of the Loan Agreement.
If the Maker fails to make any payment of principal, interest or
other amount coming due pursuant to the provisions of this Note within ten (10)
calendar days of the date due and payable, the Maker shall also pay to the
Payee a late charge equal to five percent (5%) of the amount of such payment.
Such ten (10) day period shall not be construed in any way to extend the due
date of any such payment. The late charge is imposed for the purpose of
defraying the Payee's expenses incident to the handling of delinquent payments
and is in addition to, and not in lieu of, the exercise of the Payee of any
rights and remedies
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hereunder, under the Loan Agreement or any other documents in connection
therewith or under applicable laws, and any fees and expenses of any agents or
attorneys which the Payee may employ.
This Note was issued by Maker to Payee pursuant to the Loan
Agreement, all of the terms of which are incorporated herein by reference.
This Note continues to be secured by and entitled to all the
benefits of (i) a Mortgage and Security Agreement dated December 16, 1992 from
Maker for the benefit of Payee, secured upon certain land and improvements
thereon in Dauphin County, Pennsylvania (the "Harrisburg Mall") and recorded in
the office for the recording of deeds in and for said County (the "Harrisburg
Mortgage"); (ii) an Assignment of Lessor's Interest in Leases for the
Harrisburg Mall (the "Lease Assignment") dated December 16,1992 between Maker
and Payee; and (iii) security interests (the "Security Interests") granted to
Payee under the Loan Agreement (the Mortgage, the Lease Assignment and the
Security Interests are hereinafter collectively called the "Collateral").
Reference to the Loan Agreement and the Collateral is made for a description of
the properties mortgaged, secured and pledged as security for this Note, the
nature and extent thereof, the rights of the holder of this Note and the Maker
in respect of such security and otherwise, and the terms upon which this Note
is issued.
If any event of default as defined in the Loan Agreement or the
Collateral (an "Event of Default") should occur, the entire unpaid balance of
said principal sum with interest accrued thereon at the rate hereinbefore
specified to the date of said default and thereafter at the lower of (i) five
percent (5%) above the rate then extant hereunder or (ii) the
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highest aggregate rate of interest permitted by law, and all other sums due by
Maker hereunder or under the provisions of the Collateral or the Loan
Agreement, shall at the option of Payee and without notice to Maker become due
and payable immediately, anything herein or in the Collateral or the Loan
Agreement to the contrary notwithstanding; and payment of the same may be
enforced and recovered in whole or in part at any time by one or more of the
remedies provided to Payee in this Note or in the Collateral or in the Loan
Agreement; and in such case Payee may also recover all costs of suit and other
expenses in connection therewith, including a reasonable attorney's fee for
collection.
MAKER HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS
OR THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF
PENNSYLVANIA, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR FOR MAKER
IN ANY SUCH COURT, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM OR TIME
THERE OR ELSEWHERE TO BE HELD AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST
MAKER IN FAVOR OF PAYEE FOR ALL SUMS DUE OR TO BECOME DUE BY MAKER TO PAYEE
UNDER THIS NOTE, WITH COSTS OF SUIT AND RELEASE OF ERRORS AND WITH THE GREATER
OF FIVE PERCENT (5%) OF SUCH SUMS OR $5,000 ADDED AS A REASONABLE ATTORNEY'S
FEE AND FOR DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE
SUFFICIENT WARRANT. SUCH AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY ANY
EXERCISE THEREOF, AND
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JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS THERE IS
OCCASION THEREFOR.
MAKER ACKNOWLEDGES THAT THE PROVISIONS FOR CONFESSION OF JUDGMENT
CONTAINED IN THE ABOVE PARAGRAPH WAIVE ANY RIGHT TO A HEARING THAT WOULD
OTHERWISE BE A CONDITION TO THE PAYEE'S OBTAINING THE JUDGMENT AUTHORIZED BY
SUCH PARAGRAPH, AND THAT THE JUDGMENT SO OBTAINED WILL CONSTITUTE A LIEN ON THE
PROPERTY OF MAKER IN THE COUNTY WHERE THE JUDGMENT IS ENTERED.
The remedies of Payee as provided herein, in the Collateral or in the
Loan Agreement shall be cumulative and concurrent, and may be pursued singly,
successively or together against Maker and/or the property covered by the
Collateral and/or any other property mortgaged, pledged or assigned to Payee as
security for this Note, at the sole discretion of Payee, and such remedies
shall not be exhausted by any exercise thereof but may be exercised as often as
occasion therefor shall occur; provided, however, the exercise of any such
remedies shall be subject to the terms of the Intercreditor Agreement between
Maker, Payee and Prudential dated December 16,1992.
Maker hereby waives and releases all errors, defects and imperfections
in any proceedings instituted by Payee under the terms of this Note or of the
Loan Agreement or the Collateral, as well as all benefit that might accrue to
Maker by virtue of any present or future laws exempting any of the property
covered by the Collateral or any other property, real or personal, or any part
of the proceeds arising from any sale of such property, from
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attachment, levy or sale under execution or providing for any stay of
execution, exemption from civil process or extension of time for payment, as
well as the right of inquisition on any real estate that may be levied upon
under a judgment obtained by virtue hereof, and Maker hereby voluntarily
condemns the same and authorizes the entry of such voluntary condemnation on
any writ of execution issued thereon, and agrees that such real estate may be
sold upon any such writ in whole or in part in any order desired by Payee.
Maker and all endorsers, sureties and guarantors hereof jointly and
severally waive presentment for payment, demand, notice of nonpayment, notice
of protest and protest of this Note, and all other notices in connection with
the delivery, acceptance, performance, default or enforcement of the payment of
this Note except such notices as are specifically required by this Note or by
the Loan Agreement, and they agree that the liability of each of them shall be
unconditional without regard to the liability of any other party and shall not
be in any manner affected by any indulgence, extension of time, renewal, waiver
or modification granted or consented to by Payee; and Maker and all indorsers,
sureties and guarantors hereof consent to any and all extensions of time,
renewals, waivers or modifications that may be granted by Payee with respect to
the payment or other provisions of this Note, and to the release of the
Collateral, or any part thereof, or any property now or hereafter securing this
Note with or without substitution, and agree that additional makers, indorsers,
guarantors or sureties may become parties hereto without notice to them or
affecting their liability hereunder.
Payee shall not by any act of omission or commission be deemed to have
waived any of its rights or remedies hereunder unless such waiver be in writing
and signed
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by Payee, and then only to the extent specifically set forth therein; a waiver
on one event shall not be construed as continuing or as a bar to or waiver of
such right or remedy on a subsequent event.
Maker shall pay the cost of any revenue, tax or other stamps now or
hereafter required by law at any time to be affixed to this Note or the
Collateral; and if any taxes be imposed with respect to debts secured by
mortgages or deeds of trust, or with respect to notes evidencing debts so
secured, Maker agrees to pay to the holder hereof upon demand the amount of
such taxes, and hereby waives any contrary provisions of any laws or rules of
court now or hereafter in effect.
Notwithstanding any provision contained herein, the total liability of
Maker for payment of interest pursuant hereto, shall not exceed the maximum
amount of such interest permitted by law to be charged, collected or received
from Maker, and if any payments by Maker include interest in excess of such a
maximum amount, Payee shall apply such excess to the reduction of the unpaid
principal amount due pursuant hereto, or if none is due, such excess shall be
refunded to Maker. Any such application or refund shall not cure or waive any
Event of Default. In determining whether or not any interest payable under
this Note or the Loan Agreement or the Collateral exceeds the highest rate
permitted by law, any non-principal payment (except payments specifically
stated in this Note to be "interest"), including without limitation prepayment
premiums and late charges, shall be deemed, to the extent permitted by
applicable law, to be an expense, fee, premium or penalty rather than interest.
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If any provision hereof is found by a court of competent jurisdiction
to be prohibited or unenforceable, it shall be ineffective only to the extent
of such prohibition or unenforceability, and such prohibition or
unenforceability shall not invalidate the balance of such provision to the
extent it is not prohibited or unenforceable, nor invalidate the other
provisions hereof, all of which shall be liberally construed in favor of Payee
in order to effect the provisions of the Note.
The words "Payee" and "Maker" whenever occurring herein shall be
deemed and construed to include the respective successors and assigns of Payee
and Maker. This instrument shall be construed according to and governed by the
substantive laws of the Commonwealth of Pennsylvania.
MAKER ACKNOWLEDGES THAT THIS NOTE CONTAINS CONFESSION OF JUDGMENT
LANGUAGE AND MAKER HAS HAD THE ASSISTANCE OF COUNSEL IN THE REVIEW AND
EXECUTION OF THIS NOTE. MAKER FURTHER ACKNOWLEDGES THAT THE MEANING AND EFFECT
OF THE CONFESSION OF JUDGMENT HAVE BEEN FULLY EXPLAINED TO MAKER BY SUCH
COUNSEL.
The Amended and Restated Declaration of Trust establishing Maker dated
February 27, 1985, as amended (the "Declaration"), provides and Payee agrees
that neither the Shareholders nor the Trustees (as such terms are defined in
the Declaration) nor officers, employees or agents of the Trust shall, in their
respective capacities as such, be personally liable, jointly or severally, for
payment of the principal of or interest hereunder or any other amount due under
the Loan Agreement, and all persons shall look solely to the Trust Estate
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(as defined in the Declaration), for the payment of any claim hereunder or
under the Loan Agreement or the performance hereof or thereof.
This Note is intended to amend and restate that certain Amended and
Restated Note from Maker in favor of Payee dated December 16, 1992 in the face
amount of $3,525,000 as amended and restated by a certain Second Amended and
Restated Note from Maker in favor of Payee dated as of December 15, 1995 in the
amount of $1,587,430 (collectively, the "Prior Note") in its entirety as set
forth herein with respect to the unpaid principal balance of the Prior Note as
of the date hereof. This Note evidences the same indebtedness evidenced by the
Prior Note, reduced by the amount of principal payments made by Maker from the
date of the Prior Note through the date hereof and is entitled to all of the
security and rights afforded the Prior Note. This Note does not constitute,
nor is it intended to be, a novation of the Prior Note.
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IN WITNESS WHEREOF, Maker has duly executed this Note the day and year
first above mentioned.
EQK REALTY INVESTORS I, a
Massachusetts business trust
By:
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Name:
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Title:
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EXHIBIT B
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Disclosure for Confession of Judgment [PNCBANK LOGO]
Undersigned: EQK REALTY INVESTORS I
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Lender: PNC Bank, NATIONAL ASSOCIATION
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The undersigned has executed, and/or is executing, on or about December
15, 1996, the following document(s) under which the undersigned is obligated to
repay monies to Leader:
I. Third Amended and Restated Note
2. Second Amendment to Second Amended and Restated Loan Agreement
A. THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THE ABOVE
DOCUMENTS CONTAIN PROVISIONS UNDER WHICH LENDER MAY ENTER JUDGMENT BY
CONFESSION AGAINST THE UNDERSIGNED. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR
NOTICE AND A HEARING ON THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT MAY BE
ASSERTED AGAINST IT BY LENDER THEREUNDER BEFORE JUDGMENT IS ENTERED, THE
UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND
EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING JUDGMENT AGAINST IT BY
CONFESSION PURSUANT TO THE TERMS THEREOF.
B. THE UNDERSIGNED ALSO ACKNOWLEDGES AND AGREES THAT THE ABOVE
DOCUMENTS CONTAIN PROVISIONS UNDER WHICH LENDER MAY, AFTER ENTRY OF JUDGMENT
AND WITHOUT EITHER NOTICE OR A HEARING, FORECLOSE UPON, ATTACK, LEVY, TAKE
POSSESSION OF OR OTHERWISE SEIZE PROPERTY OF THE UNDERSIGNED IN FULL OR PARTIAL
PAYMENT OF THE JUDGMENT. BEING FULLY AWARE OF ITS RIGHTS AFTER JUDGMENT IS
ENTERED (INCLUDING THE RIGHT TO MOVE TO OPEN OR STRIKE THE JUDGMENT), THE
UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES ITS RIGHTS TO
NOTICE AND A HEARING AND EXPRESSLY AGREES AND CONSENTS TO LENDER'S TAKING SUCH
ACTIONS AS MAY BE PERMITTED UNDER APPLICABLE STATE AND FEDERAL LAW WITHOUT
PRIOR NOTICE TO THE UNDERSIGNED.
C. The undersigned certifies that a representative of Lender
specifically called the confession of judgment provisions in the above
documents to the attention of the undersigned, and/or that the undersigned was
represented by legal counsel in connection with the above documents.
D. The undersigned hereby certifies: that its annual income
exceeds $10,000; that all references to "the undersigned" above refer to all
persons and entities signing below; and that the undersigned received a copy
hereof at the time of signing.
EQK REALTY INVESTORS I
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(Corporation, Partnership or other Entity) (Individual) (SEAL)
Print Name:
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By:
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(SEAL)
Print Name:
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(Individual) (SEAL)
Title: Print Name:
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